INDIAN PENAL CODE. Justice Verma Committee Recommendations (JVC) Includes right to private defence in case of acid attack.

Transcription

1 INDIAN PENAL CODE Section Indian Penal Code, 1860 Law Commission Recommendations Justice Verma Committee Recommendations (JVC) Criminal Law(Amendment) Act, Right of Private Defence of the body extends to causing death, if the assault is committed with the intention of committing rape or gratifying unnatural lust. [Firstly -assault which causes reasonable apprehension of death Secondly - assault which causes reasonable apprehension of grievous hurt Thirdly - assault with the intention of committing rape Fourthly -assault with the intention of gratifying unnatural lust Fifthly - assault with the intention of kidnapping The 42 nd Law Commission Report,1971 Recommended that Section 100 be amended to read as follows: 100. Right of private defence of the body- (1) Every person has a right to defend his own body and the body of any other person against any offence affecting the human body. (2) If the offence which occasions the exercise of the said right is- a) such an assault as may reasonably cause an apprehension that death or grievous hurt will otherwise be the consequence of the assault or v) an assault with the intention of committing rape or carnal intercourse against the order of nature, or c) an assault with the Includes right to private defence in case of acid attack. It was drafted as under:- [Secondly- Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault, which shall include a crime Punishable under Section 326A of the Indian Penal Code. ] Change as compared to IPC New clause Seventhly which includes acid attack or attempt of acid attack under right to private defence. [Seventhly - acid attack or attempt of acid attack (NEW CLAUSE)]

2 Sixthly-assault with the intention of wrongful confinement] intention of kidnapping or d) An assault in such circumstances as may reasonably cause an apprehension that an offence punishable under any of the sections of this code is being committed. Or e) An assault with the intention of wrongfully confining a person in such circumstances as may reasonably cause him an apprehension that it will not be possible to have recourse to the public authorities for his release. The right of private defence of the body extends under the restrictions mentioned in section 99 to the voluntary causing of death or of any other harm to the assailant, And in any other case, it extends under the same restrictions to the voluntary causing to the assailant of any harm other than death. 3) if, in exercise of the right of private defence against an assault which reasonably

3 causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. S. 166A -- The 42 nd Law Commission Report, 1971 Recommended that a new Section 166A be inserted in the following terms: 166A. Public Servant acting with intent to cause injury to any person- whoever being a public servant wilfully conducts himself in the performance of his functions as such public servant, intending to cause or knowing it to be likely that he will by such conduct cause injury to any person, shall be punished with imprisonment of either description for a term which may extend to one year or with fine or with both The 152 nd Law Commission Report, 1994 Recommended that a new Section 166A be inserted in the code in the following New S. 166A: 166A. Public Servant knowingly disobeying direction of law Whoever, being a public servant, (a) knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other matter, or (b) knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or (c) in relation to an offence Change as compared to IPC New Section 166A has been added to penalise public servants disobeying directions under law which prohibits him from requiring attendance of any person or where he knowingly disobeys the law regulating the manner in which investigation will be conducted or fails to record information given to him regarding cognizable offences of violence against women. Change as compared to JVC --Failure to record FIR in case of acid attack has been criminalized --Punishment is lower; being less than six months up to two years [Public servant disobeying direction under law

4 terms: S.166A : Whoever, being a public servanta) Knowingly disobeys any direction of the law prohibiting him from requiring the attendance at any place of any person for the purpose of investigation into an offence or other matter, or b) Knowingly disobeys any other direction of the law regulating the manner in which he shall conduct such investigation to the prejudice of any person shall be punished with imprisonment for a term which may extend to one year or with fine or with both 172 nd Law Commission Report,2000 Review of Rape Laws New section 166A, IPC punishable under Section 354, Section 354A, Section 354B, Section 354 C(2), Section 376(1), Section 376(2), Section 376(3), Section 376A, Section 376B(1), Section 376B(2), Section 376C, Section 376D or Section 376F does not record information given to him under Section 154(1) of the Code of Criminal Procedure shall be punished with imprisonment for a term which may extend to five years Rigorous imprisonment and fine. "166A. Whoever, being a public servant,- a. knowingly disobeys any direction of the law which prohibits him from requiring the attendance at any place of any person for the purpose of investigation into an offence or any other, or b. knowingly disobeys, to the prejudice of any person, any other direction of the law regulating the manner in which he shall conduct such investigation, or c. fails to record any information given to him under sub-section (I) of section 154 of the Code of Criminal Procedure, 1973, in relation to cognizable offence punishable under section 326A, section 326B, section 354, section 354B, section 370, section 370A, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or

5 recommended "166A. Whoever, being a public servant- (a) knowingly disobeys any direction of the law prohibiting him from requiring the attendance at any place of any person for the purpose of investigation into an offence or other matter, or (b) knowingly disobeys any other direction of the law regulating the manner in which he shall conduct such investigation, to the prejudice of any person, shall be punished with imprisonment for a term which may extend to one year or with fine or with both." section 509, Shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years, and shall also be liable to fine.] 166B New Section 166B has been added : Punishment for non-treatment of victim It penalizes those in charge of hospitals, whether public or

6 228A Disclosure of identity of victim of certain offences etc. (1) In case of rape, forced intercourse by husband with wife when separated, custodial rape by public servant, inducing female inmate to have intercourse by superintendent/manag er of jail, remand home or other place of custody, manager of hospital- Identity of victim if made known is punishable private, who contravene S. 357C of Cr.P.C, which provides that all hospitals will provide first aid and medical treatment to victims of acid attack, rape- including marital sexual intercourse without consent and sexual intercourse by someone in authority. Punishment: Imprisonment up to 1 year or Fine or Both No substantial change. Includes amended provisions of rape thereby including additional provisions created by this Act. 326A New S. 326A Voluntarily Change as compared to IPC

7 causing grievous hurt through use of acid, etc. New Section 326A has been added on voluntarily causing grievous hurt through use of acid etc. Change as compared to JVC No change in substantial section. Change in the punishment section as discussed below. Note: Its gender neutral for both the perpetrator and the victim. -- Punishment: RI for a term which shall not be less than ten years but which may extend to life, and shall also be liable to pay compensation to the victim, adequate to meet at least The medical expenses incurred by the victim. Punishment: Imprisonment of either description for a term which shall not be less than ten years but which may extend to life and Fine. Fine to be adequate to meet medical expenses. It further provides that any fine imposed under this section be given to victim.

8 -- Explanation 1- Permanentor partial damage includes female circumcision or mutilation of her genitals. Female circumcision or mutilation of her genitals was not accepted. -- Explanation 2 - The damage will not be required to be irreversible. Explanation 2 -The damage will not be required to be irreversible.the explanation was added after S. 326B, and applies to S. 326A and 326B. 326B S. 326B: Voluntarily throwing or attempting to throw acid, etc. Whoever throws, or attempts to throw acid on any person, or attempts to administer acid to any person, or attempts to use any other means to achieve the purpose of causing permanent or partial damage to any part or parts of the body of a person, Change as compared to IPC New Section 326B has been added which penalizes voluntarily throwing or attempting to throw acid. Change as compared to JVC - Changes in drafting. Whoever throws or attempts to throw acid on any person or attempts to administer acid to any person, or attempts to use any other means, with the intention of causing permanent or partial damage or deformity or burns or maiming or disfigurement or disability or grievous hurt to that

9 person Note: Its gender neutral for both the perpetrator and the victim. -- Punishment: RI for a term which shall not be less than 5 yrs. but may extend to 7 yrs. and compensation for medical expenses of victim. Punishment: Imprisonment of either description for a term which shall not be less than 5 yrs. but may extend to 7 yrs.and Fine. 354 Assault or Criminal Force to Woman with intent to outrage her modesty. Note: This section is gender neutral with respect to perpetrator, however there has been no case law which shows that a woman has been prosecuted under this section. Therefore, it has historically been used to convict men. This section is The 42 nd Law Commission Report, 1971 recommended insertion of a new section 354A in the following terms: 354A. Indecent Assault on a minor- Whoever assaults any minor under sixteen years of age in an indecent, lascivious or obscene manner, shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both. The 85 th Law Commission Report, 1980 recommended a separate section to deal with Indecent Assault on a New S. 354: Sexual Assault and Punishment for Sexual Assault. It collapsed the distinction between sections 354 and 509 and brought it within one section. This section included intentional non-consensual touching of a sexual nature as well as words, acts and gestures which create an unwelcome threat of a sexual nature or result in unwelcome advance. It includes display and dissemination of Change as compared to IPC, No change in the substantial section. The punishment was enhanced as discussed below. Change as compared to JVC, JVC was not accepted. Retained section 354 as provided in the IPC.

10 gendered with respect to the victim, being a woman. minor: Section 354A Indecent Assault on a minor- whoever assaults any minor under sixteen years of age in an indecent, lascivious or obscene manner, shall be punished with imprisonment of either description for a term which may extend to three years or with a fine or with both. The 156 th Law Commission Recommendation 1997: Section 354. Assault or criminal force to woman with intent to outrage her modesty- whoever assaults or uses criminal force to any woman, intending to outrage her modesty or to commit sexual assault to her or knowing it to be likely that he will thereby outrage her modesty or commit sexual assault to her, shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to a fine. pornographic material.

11 Sexual Harassm ent Punishment: Imprisonment of either description up to 2 yrs. or Fine or both. Punishment: Graded punishment- tactile offences are punishable up to 5 yrs. RI or Fine or both; non-tactile offences are Punishableup to 1yr imprisonment of either description or Fine or both. Punishment: Imprisonment of either description for a term which shall not be less than 1yr but which may extend to 5yrs. and Fine Change as compared to IPC New section 354A has been added which spells out the most common acts of sexual harassment as provided in Vichada and penalizes them. Specifically it penalizes the following:- - physical contact and advances involving unwelcome and explicit sexual overtures - demand or request for sexual favours - showing pornography against the will of a woman - making sexually coloured remarks Note: The section is gender specific, being male with respect to perpetrator and gender neutral

12 with respect to victim. Punishment: It grades the punishment where offences of unwelcome physical contact, request for sexual favours and forcefully showing pornography are punishable with RI for a term which may extend to 3 yrs. or Fine or Both. This offence is bailable. The offence of making sexually coloured remarks is punishable with imprisonment of either description which may extend to 1 yr. or Fine or both. This offence is bailable.

13 Assault or use of criminal force to women with intent to disrobe her New S. 354A: Assault or use of criminal force to women with intent to disrobe her. Whoever assaults or uses criminal force or abets such act with the intention of disrobing a woman or compelling her to be naked in any public place shall be punished Punishment: Imprisonment of either description for not less than 3 yrs. which may extend to 7 yrs. and Fine. Change as compared to IPC: New S. 354B inserted: Assault or use of criminal force to woman with intent to disrobe has been added. Change as compared to JVC - Perpetrator is a man and the victim is a woman - Is a crime whether carried out in a public place or private place Drafted as herein below:- Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked Punishment: Imprisonment of either description for not less than 3 yrs. which may extend to 7 yrs. and Fine. Retained as in JVC.

14 Voyeuris m -- New S. 354B: Voyeurism Whoever watches a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator, or by any other person at the behest of the perpetrator Punishment On first conviction, punishable with imprisonment of either description for a term which shall not be less than 1yr but may extend to 3 yrs. and Fine. On subsequent conviction, Change as compared to IPC: New section on voyeurism has been added. Change as compared to JVC - Substantive section includes dissemination of image - changes in the gendering of the section where the perpetrator can only be a man Drafted as under Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image.. Punishment [Retained as in the JVC.] On first conviction, punishable with imprisonment of either

15 punishable with imprisonment of either description which shall not be less than 3 yrs. but may extend to 7 yrs. and Fine. description for a term which shall not be less than 1yr but may extend to 3 yrs. and Fine. On subsequent conviction, punishable with imprisonment of either description which shall not be less than 3 yrs.but may extend to 7 yrs. and Fine. Stalking S. 354C(1): Stalking- Whoever follows a person and contacts, or attempts to contact such person to foster personal interaction repeatedly, despite a clear indication of disinterest by such person, or whoever monitors the use by a person of the internet, or any other form of electronic communication, or watches or spies on a person in a manner that results in a fear of violence or serious alarm or distress in the mind of such Change as compared to IPC: New section on stalking has been added. Change as compared to JVC - Does not include spying on a person - Changes in gendering of the section, where perpetrator can only be a man and victim can only be a woman - Changes in the punishment Drafted as herein:-

16 person, Or interferes with the mental peace of such person, commits the offence of stalking. Punishment: imprisonment of either description for a term which shall not be less than 1 year but which may extend to 3 years and Fine. The offence is non-bailable. 1. Any man who I. follows a woman and contacts, or attempts. to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or ii. monitors the use by a woman of the internet, or any other form of electronic communication, commits the offence of stalking Punishment: On first conviction- Imprisonment of either description up to 3 years and Fine. No minimum sentence provided. This offence is bailable. On subsequent conviction, Imprisonment of either description up to 5 years and Fine. No minimum sentence

17 provided. This offence is nonbailable. 370 Buying or disposing of any person as a slave/ Trafficking The 146 th Law Commission Report, 1993 recommended the insertion of a new section 373A criminalising selling a woman or a minor in the following terms: 373A: Selling a woman or a minor etc. 1) Whoever in case not falling under section 372 or section 370 a) Sells, lets to hire or otherwise disposes of for consideration, any person under the age of eighteen years or any woman of any age, or b) Buys, hires or otherwise obtains for consideration the possession of any such Replaced with Trafficking Recruiting, transporting, harboring,transferring or receiving person by means of threat, coercion, and abduction, and deception, abuse of power or inducement for the purpose of exploitation is trafficking. Explanation 1: Exploitation includes prostitution, other sexual exploitation, forced labour, slavery, servitude, removal of organs. Explanation 2: Consent of the Change as compared to IPC This section has been replaced with a section on trafficking. Change as compared to the JVC The substantial section remains the same. There are changes in the Explanation and punishment section as follows:- Explanation 1: The word prostitution has been removed, further forced labour has been removed. Both these terms have been replaced by physical exploitation. Explanation 2: Consent of the victim is immaterial to the

18 person or any woman, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to a fine. 2) The provisions of this section apply in relation to a person of unsound mind as they apply in relation to a person under the age of eighteen years Explanation: Nothing in this section shall apply in relation to the hiring of services of any person. victim is immaterial to the offence. offence. Note: Both victim and perpetrator are gender neutral, Punishment: Imprisonment of either description for a term which may extend to 7 yrs. and Fine. -- Punishment: RI for a term which shall not be less than 7 yrs. buy may extend to 10 yrs. and Fine. Where two or more persons are trafficked: RI for a term which shall not be less than 10 yrs. but may extend to life imprisonment, with Fine. Where a minor is trafficked: RI for a term which shall not be less than 10 yrs. but may Punishment: RI for 7 yrs. to10 yrs. and Fine. Where two or more persons are trafficked: RI for a term which shall not be less than 10 yrs. but may extend to life imprisonment, with Fine. Where a minor is trafficked: RI for a term which shall not be less

19 Employi ng of a trafficke d person extend to life imprisonment, with Fine. Where two or more minors are trafficked: RI for a term which shall not be less than 14 yrs. but may extend to life imprisonment. Repeated trafficking of minors: Imprisonment for life, without parole. Where police officer or public servant is involved in trafficking of minor: Imprisonment for life, without parole S. 370A: Employing of a trafficked person - Ss.(1)Knowingly employing a trafficked child in any form of than 10 yrs. but may extend to life imprisonment, with Fine. Where two or more minors are trafficked: RI for a term which shall not be less than 14 yrs. but may extend to life imprisonment and Fine. Repeated trafficking of minors: Imprisonment for life, without parole and Fine. Where police officer or public servant is involved in trafficking of any person: Imprisonment for life, without parole and Fine. Change as compared to IPC: New S. 370A : Employing of a trafficked person- has been introduced. Change as compared to JVC There are changes in the substantial section. There are no changes in the gendering or the punishment section

20 labour. Punishment: RI for a term which shall not be less than 5 yrs.but may extend to 7 yrs. and Fine. Ss.(2) Knowingly employing a trafficked adult in any form of labour. Punishment: RI for a term which shall not be less than 3 yrs. but may extend to 5 yrs. and Fine Ss. (1) Knowingly sexually exploiting trafficked child Punishment: RI for a term which shall not be less than 5 yrs. but may extend to 7 yrs. and Fine. Ss.(2) Knowingly sexually exploiting a trafficked person. Punishment: RI for a term which shall not be less than 3 yrs. but may extend to 5 yrs. and Fine Note: Both victim and perpetrator are gender neutral. 375 Rape Rape S Sexual Assault 172 nd Law Commission Recommendation, 2000, recommended that Rape be substituted with sexual assault Rape Rape: Old Section 375 of IPC, 1860 substituted with new Section. Perpetrator is male and victim is female The 42 nd Law Commission Report : Perpetrator is male and Victim is female. The 85 th Law Commission Perpetrator is male and victim is gender neutral Perpetrator is male and victim is female.

21 Limited to penile vaginal penetration as determined by case laws. The statute merely says that penetration is sufficient to constitute sexual intercourse and does not specify the kinds of penetration it covers. Recommendation,1980 the perpetrator was male and the victim female The 42 nd Law Commission Report : penetration is sufficient to constitute sexual intercourse necessary to the offence of rape. The 85 th Law Commission Report:penetration is sufficient to constitute sexual intercourse necessary to the offence of rape. 172 nd Law Commission Recommendation, 2000,expanded the kinds of penetration as below :- (a) penetrating the vagina (which term shall include the labia majora), the anus or urethra of any person with - i) any part of the body of another person or ii) an object manipulated by another person except where such penetration is carried out for proper hygienic or medical purposes; Ss. (a) penetrates the vagina or anus or urethra of a person with (i) any part of his body including his penis or, (ii) any object manipulated by him, except where such penetration is carried out for proper hygienic or medical purposes; or, Ss.(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or Ss. (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or Change as compared to JVC- Penetration by object or any other body part into mouth deleted. (c) introducing any part of

22 the penis of a person into the mouth of another person; -- Ss. (b) manipulating any part of the body of anotherperson so as to cause penetration of the vagina (which term shall include the labia majora), theanus or the urethra of the offender by any part of the other person's body; -- (d) engaging in cunnilingus or fellatio; or Ss. (b) manipulates any part of the body of a person so as to cause penetration of the vagina or anus or urethra of another person Ss. (c) Engages in cunnilingus or fellatio. Ss. (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person - No change New Ss (d) - applies his mouth to the vagina, urethra, and anusof a woman or makes her to do so to him or any other person. -- (e) continuing sexual assault as defined in clauses(a) to (d) above Exception for medical or hygienic purpose made only for penetration by object. Exception for medical procedures or interventions only. Hygienic purpose deleted.

23 Exception I. A medical procedure or intervention shall not constitute rape. Firstly Against her will. The 42 nd Law Commission Report : Firstly, Against her will Firstly Against the person s will. Firstly Against her will. The 85 th Law CommissionRecommendati on 1980: Firstly, Against her will Secondly Without her consent. The 172 nd Law Commission Recommendation, 2000, First- Against the other person's will.. The 42 nd Law Commission Report: Secondly, without her consent. Secondly Without the person s consent. Secondly Without her consent. The 85 th Law Commission Recommendation 1980: Secondly: without her free and voluntary consent. The 172 nd Law Commission Recommendation, 2000: Secondly- Without the other person's consent.

24 Thirdly With consent, where consent is obtained by putting her or any other person in fear of hurt or death. The 42 nd Law Commission Report : with her consent when it has been obtained by putting her in fear of death or of hurt, either to herself or to anyone else present at the place. Thirdly With consent, where consent is obtained by putting the person or any other person in fear of hurt or death. Thirdly With consent, where consent is obtained by putting her or any other person in fear of hurt or death. The 85 th Law Commission Recommendation, 1980: Thirdly: With her consent when her consent has been obtained by putting her in fear of death or of hurt or of any injury either to herself or to any other person or by criminal intimidation as defined in Section 503 The 156 th Law Commission Recommendation 1997: Thirdly- with her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or

25 of hurt, or of any other injury. The 172 nd Law Commission Recommendation, 2000: Thirdly- With the other person's consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or hurt. Fourthly - rape committed by accused by impersonation of husband The 42 nd Law Commission Report: fourthly, with her consent, knowing that it is given in the believe that he is her husband. The 172 nd Law Commission Recommendation, 2000 Fourthly- Where the other person is a female, withher consent, when the man knows that he is not the husbandof such other person and that her consent is given becauseshe believes that the offender is another man to whom sheis or believes herself to be lawfully married Fourthly amended. Rape committed by impersonation expanded to include impersonation by accused of anyone to whom the complainant would have consented. Fourthly - rape committed by accused by impersonation of husband.

26 Fifthly Where consent is given by reason of unsoundness of mind or intoxication. 85 th Law Commission Recommendation 1980 : Fifthly-with her consent, if the consent is given by a woman who from unsoundness of mind or intoxication or by reason of the consumption or administration of any stupefying or unwholesome substance is unable to understand the nature and consequences of that to which she gives consent or is unable to offer effective resistance. Fifthly Where consent is given by reason of unsoundness of mind or intoxication. Fifthly Where consent is given by reason of unsoundness of mind or intoxication. 172 nd Law Commission Recommendation, 2000: Fifthly With the consent of the other person, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by the offender personally or through another of any stupefying or unwholesome substance, the other person is

27 Unable to understand the nature and consequences of that to which such other person gives consent. Sixthly - the age of consent is sixteen. The 42 nd Law Commission Report: Age of consent is 16 years. Sex with a girl under 16 but not less than 12 years is punishable with imprisonment up to seven years and fine. The 85 th Law Commission Recommendation 1980: Sixthly- with or without her consent when she is less than eighteen years of age. Deleted age of consent from the definition of rape, and introduced a new section on underage rape. Sixthly- With or without the other person s consent, when such other person is under 18 years of age Change as compared to JVC Amended to increase the age of consent to eighteen years. The 172 nd Law Commission Recommendation, 2000: Sixthly- With or without the other person s consent, when such other person is under sixteen years of age.

28 -- -- Introduced new sixthly for cases where the person is unable to communicate consent, expressly or impliedly. Seventhly for cases where woman is unable tocommunicate consent. Marital Rape Exemption retained, wife not being under fifteen years of age The 42 nd Law Commission Report : Insertion of Section 376A, criminalising sexual intercourse with a child wife: Whoever, has sexual intercourse with his wife, the wife being under fifteen years of age shall be punished a) If she is under twelve years of age with rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine and b) In any other case, with imprisonment of either description for a term which may extend to two years or with fine or with both. Marital rape exemption deleted Explanation III: Consent will not be presumed in the event of an existing marital relationship between the complainant and the accused. Marital Rape Exemption retained, wife not being under fifteen years of age. [Thus, reduced age of consent for wives to 15, while for unmarried girls it s 18.] [There is an anomaly in this provision as POCSO states that any sexual intercourse between minors is illegal and does not make an exception for married couples.] 85 th Law Commission Report, 1980 exception: Sexual intercourse by a man with his own wife, the wife

29 not being under eighteen years of age is not rape. The 172 nd Law Commission Recommendation, 2000: Exception: Sexual intercourse by a man with his own wife, the wife not being under sixteen years of age, is not sexual assault." Positive definition for consent to mean unequivocal voluntary agreement, introduced. Explanation IV. - Consent means an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates Willingness to participate in the specific act. -- Proviso: lack of physical resistance will not amount to consent. Positive definition for consent to mean unequivocal voluntary agreement, retained as in the JVC. Explanation II. - Consent means an unequivocal voluntary agreement when the person by words, gestures or any form of non-verbal communication, communicates Willingness to participate in the specific act. Proviso: Lack of physical resistance will not amount to consent. Retained as in the JVC.

30 376(1) Punishm ent for Rape/Se xual Assault Imprisonment of either description for a term which may not be less than 7 yrs.but may extend to life or for a term which may extend to 10 yrs. and Fine. The 42 nd Law Commission Report: imprisonment for a term which may extend to fourteen years and also be liable to a fine. The 172 nd Law Commission Recommendation, 2000 Imprisonment of either description for a term which shall not be lesthand seven years but which may be for life or for a termwhich may extend to ten years and shall also be liable to fine Provided that, a person who does not offer actual physical resistance to the act of penetration is not by reason only of that fact, to be regarded as consenting to the sexual activity RI for a term which shall not be less than 7 yrs. but which may extend to life and compensation for medical expenses. Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Imprisonment of RI of descriptionwhich shall not be less than 7 yrs. but which may extend to life and Fine. Punishment for marital sex when wife is yrs. of age: Imprisonment which may extend to 2 yrs. or Fine or both. The 42 nd Law Commission Report : Punishment for marital sexual assault when wife is under 12 years of age is RI for 7 years and a fine, When the wife is between the Recognised marital rape by deleting marital rape exemption. Punishment for marital sex when wife is under 15 yrs. will be covered by S Lower punishment for marital sexual intercourse between 15 and 18 deleted.

31 Age of consent is 16, however marital sex when wife is between 15 yrs. and 16 yrs. of age is not rape, as per the exception to s ages of 12 to 15, RI for two years and a fine. The 172 nd Law Commission Recommendation, 2000 Punishment for marital sexual assault when wife is below the age of 16: Imprisonment of either description for a term which may extend to three years andshall also is liable to fine. Age of consent is 16 and thus marital sex with wife of yrs. is not punishable. Punishment for marital sex when wife is 16 yrs. of age or below has been given under s.376b under underage rape where no distinction has been made between married and unmarried women. 376(2) Punishm ent for aggravat ed sexual assault Ss. (a) Rape by police officer of a woman. Whoever, a. being a police officer, commits rape i. within the limits of the police station to which he is appointed; or ii. in the premises of any station housewhetheror not situated in the police station to which he is appointed; or iii. on a woman in his custody or in the The 172 nd Law Commission Recommendation, 2000 Ss. (a) Whoever,- (a) being a police officer commits sexual assault- (i) within the limits of the police station to which he is appointed; or (ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or Ss. (a) Rape by Police Officer - (2) Whoever, (a) being a police officer, whether on duty or otherwise, commits rape (i) within the limits of the police station to which such police officer is appointed; or, (ii) in the premises of any station house; or, (iii) on a person in such police officer s custody, or in the custody of a police officer subordinate to such police officer; or, Comment Ss. (a) Rape by police officer Whoever, a. being a police officer, commits rape i. within the limits of the police station to which such police officer is appointed; or ii. in the premises of any station house; or iii. on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or Comment Retained as in the IPC. Did not

32 custody of a police officer subordinate to such police officer; or (iii) on a person in his custody or in the custody of a police officer subordinate to him; or Amended it to include situations when the police officer is not on duty provided other conditions are met such as rape being committed within the premises of the police station or station house et al Ss. (b) being a member of the armed forces is in the area by virtue of deployment by the Central or a State government, and commits rape, Comment Rape by armed forces introduced. Ss. (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; The 172 nd Law Commission Recommendation, 2000 Ss.(b) being a public servant, takes advantage of his official position and commits sexual assault on a person in his custody as such public servant or in the custody of a public servant subordinate to him; or Comment - Sexual assault instead of rape Ss. (c) being a public servant, commits rape of a person in his custody or in the custody of a public servant accept JVC recommendation. Ss. (c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area Ss. (b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant;

33 - Perpetrator and victim are gender neutral Ss. (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women' s or children' s institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution The 172 nd Law Commission Recommendation, 2000 (c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of women s or children's institution takes advantage of his official position and commits sexual assault on any inmate of such jail, remand home, place or institution; or Ss. (d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women s or children s institution, commits rape on any inmate of such jail, remand home, place or institution; Comment Retained the IPC section. Ss. (d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution. Comment Retained the IPC section. Ss. (d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; The 172 nd Law Commission Recommendation, 2000 Ss. (d) being on the management or on the staff of a hospital, takes advantage of his official Ss. (e) being on the management or on the staff of a hospital, commits rape on a patient in That hospital. Ss. (e) being on the management or on the staff of a hospital, commits rape on woman in the hospital. Comment The victim need not be a patient in the hospital

34 position and commits sexual assault on a person in that hospital Ss. (g) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the person assaulted, commits rape Ss. (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the person commits rape Comment- retained as in JVC with minor changes New Ss. (g) Rape during communal or sectarian violence Ss.(e) commits rape on a woman knowing her to be pregnant The 172 nd Law Commission Recommendation, 2000 Ss.(f) commits rape on a woman knowing her to be pregnant (h) commits rape on a woman knowing her to be pregnant Comment Retained as in IPC Ss. (e) commits sexual assault on a woman knowing her to Comment Retained as in IPC be pregnant

35 Ss. (f) Rape of woman when she is under 12 yrs. of age. The 172 nd Law Commission Recommendation, 2000 Ss. (f) commits sexual assault on a person when such person is under sixteen years of age; or Removed underage rape from S.376 (2).Introduced new section S. 376B. (i) Rape of women when the woman is under sixteen years of age. Thus, between 16 to 18, it will be considered rape, while below 16 it will be considered aggravated rape. Ss.(g) Commits gang rape The 172 nd Law Commission Recommendation, 2000 Ss.(g) Commits gang sexual assault New S. 376C: Gang rape. Removed gang rape from S. 376(2) New Ss. (h) Rape on person incapable of consenting due to fear of death or hurt; intoxication or unsoundness of mind; or someone who is unable to communicate. New S. 376D: Gang rape. Removed gang rape from S. 376(2) of IPC, Ss. (j) Rape on woman incapable of giving consent Ss. (k) Rape by person in position of control or dominance No separate section on disabilities. However, it is covered in ss. (h). Ss. (l) Rape on woman suffering from mental or physical disability.

36 -- -- Ss. (i) Rape which causes grievous harm or disfiguring or maiming or endangering the life of the person. Ss. (m) Rape which causes grievous harm or disfiguring or maiming or endangering the life of the woman Ss. (j) Persistent Rape. Ss. (n) Repeated Rape. Punishm ent for causing death or persiste nt vegetati ve state due to rape or sexual assault. Punishment: RI for a term which shall not be less than10 yrs. but may extend to life and Fine. Provided that courts may for adequate reasons impose a lesser sentence of either description for a term of less than ten years. Punishment: RI for a term which shall not be less than10 yrs. but may extend to life and Fine. Provided that courts may for adequate reasons impose a lesser sentence of either description for a term of less than ten years. Punishment: RI for a term which shall not be less than10 yrs. but may extend to life and Compensation for medical expenses of victim. Court s discretion to impose a reduced sentence deleted New S. 376(3) Rape resulting in vegetative state or causing death Punishment: RI for 20 yrs. to life, without parole. Punishment: RI for a term which shall not be less than10 yrs. but may extend to life, which shall mean imprisonment for the remainder of that person s natural life and Fine. Comment- Court s discretion deleted. Section 376A: Rape resulting in vegetative state or causing death. Punishment: RI for 20 yrs. to life, without parole or death penalty.

37 Rape/ Sexual Assault /Nonconsens ual intercou rse by a husband upon his wife during separati on S. 376A Rape by a husband or wife during separation. Punishment: Imprisonment of either description which may extend to 2 yrs. and Fine. The 172 nd Law Commission Recommendation 2000:S. 376A Sexual assault by the husband upon his wife duringseparation Punishment: imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine. Deleted S. 376B Sexual intercourse without consent by husband upon his wife Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, Comment Amended provision- Introduced de facto separation. Removed custom or usage. -- Punishment: imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine. Sexual Intercou rse by a person in Authorit y. S. 376B Intercourse by a Public Servant with a Woman in his custody. Whoever, being a public servant, takes advantage of his/her official position and induces or seduces any person, who is in his/her custody as such The 42 nd Law Commission Recommendation, 1971: 376C: whoever being a public servant compels or seduces to illicit intercourse any woman who is in his custody as such public servant shall be punished with imprisonment for either description for a term which S. 376A Intercourse by a person in authority, public servant etc. S.376C Sexual Intercourse by a Person in Authority.

38 public servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him/her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which shall not be less than five years and shall also be liable to fine. may extend to two years or with fine or with both. 172 nd Law Commission Recommendation 2000:S. 376B Sexual intercourse by public servant with personin his custody.- Whoever, being a public servant, takesadvantage of his/her official position and induces orseduces any person, who is in his/her custody as suchpublic servant or in the custody of a public servantsubordinate to him, to have sexual intercourse withhim/her, such sexual intercourse not amounting to the offence of sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than five years and which may extend to ten years and shall also be liable to fine Ss. (a) Persons in position of authority or in a fiduciary relationship. Ss. (a) Persons in position of authority or in a fiduciary relationship.

39 Ss. (b) Public servant. Ss. (b) Public servant. -- Ss. (c) Superintendent or manager of jail, remand home or other place of custody established by law, or women s and children s institution, Observation homes, beggar homes, or any institution for the reception and care of women or children. Ss. (d) Management or staff of a hospital. Situations which will be considered punishable - abuses such position or fiduciary relationship to induce any person in their custody to have sexual intercourse with them Ss. (c) Superintendent or manager of jail, remand home or other place of custody established by law, or women s and children s institution. Ss. (d) Management or staff of a hospital. Situations which will be considered punishable - abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him

40 Punishment: Imprisonment up to 5 yrs. and Fine. Punishment: Imprisonment up to 5 yrs. and Fine. Punishment: RI for a term not less than 5 yrs.which may extend to 10 yrs. and Fine. Punishment: Imprisonment of either description for a term which shall not be less than 5 yrs.but may extend to 10 yrs. and Fine. Rape of an underag e Person S. 375 Sixthly Rape of a woman with or without her consent when she is less than sixteen years of age. 172 nd Law Commission Recommendation 2000:S. 375 Sixthly Sexual Assault of a person with or without the consent when the person is less than sixteen years of age. New S. 376B (1) Rape of an underage person- If a man has sexual intercourse with a person below sixteen years of age with or without that person s consent. Punishment: RI for 10 yrs. to life. S. 375 Sixthly Rape on a woman with or without the woman s consent when she is less than eighteen years of age. Comment Age of consent increased to 18. Punishm ent for causing death or persiste nt vegetati ve state in the course of committ ing rape of an underag e person New S. 376B (2) Whoever commits an offence under S. 376B (1) and thus inflicts such injury that it leads to persistent vegetative state or death. Punishment: RI for 20 yrs. to life, without parole. --

41 Intercou rse by superint endent of jail, remand home etc. Section 376C The 42 nd Law Commission Recommendation, 1971: 376D: Whoever being the superintendent or manager of a woman s or children s institution or holding any other office in such institution by virtue of which he can exercise any authority or control over its inmates compels or seduces to illicit sexual intercourse any female inmate of the institution shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both. Deleted Section 376C, as included in Section 376(2) (c). Deleted Section 376C, as included in Section 376(2). 172 nd Law Commission Recommendation 2000:Section 376C Comment Substantive section remains the same, change- sexual assault in place of rape; gender neutral

42 Intercou rse by member of manage ment of staff of hospital Gang rape Section 376D 172 nd Law Commission Recommendation 2000:Section 376D Comment Substantive section remains the same, change- sexual assault in place of rape; gender neutral Deleted Section 376D, as already included in S Deleted Section 376D, as already included in S S. 376(2)(g) S. 376(2)(g) New S. 376C. New Section 376D -- Gang Rape Gang rape -- Punishment: RI for a term which shall not be less than 20 yrs.but which may extend to life and compensation for medical expenses. Punishment: RI for a term which shall not be less than 20 yrs. but which may extend to life without parole and fine. The fine will be just and reasonable to meet medical expenses and rehabilitation expenses. Any fine imposed under this section will be paid to the victim. Comment Compensation as introduced in the JVC replaced by fine.

43 Gang rape causing death or persiste nt vegetati ve state Punishm ent for repeat offender s New S. 376D. Gang Rape followed by death of a persistent vegetative state. Punishment: Life without parole New S. 376E. Punishment for Repeat Offenders. -- Punishment: Life without parole. -- New S. 376E. Punishment for Repeat Offenders. Includes offences committed under Sections 376, 376A and 376D. Thus, Section 376B, Section 376C removed from the ambit of repeat offences. [Therefore sexual intercourse without consent by husband on his wife, and sexual intercourse not amounting to rape by a person in a position of authority not included within the ambit of this section.] Punishment: Life without parole or death penalty.